Justice Department opinion finds EEOC disparate impact policies unconstitutional

The Department of Justice issued a 25-page opinion this week declaring that the Equal Employment Opportunity Commission’s disparate impact policies are unconstitutional. The opinion states that the policies make employers subject to Title VII lawsuits when hiring or promotion outcomes differ by race, even when the policies themselves contain no racial criteria.

Officials found that the approach compels race-based decision-making in violation of constitutional protections.

Background on the policies Disparate impact rules have allowed lawsuits when statistical outcomes vary across racial groups, regardless of employer intent. The opinion says this framework disregards the purpose behind employment practices and pressures employers to consider race to avoid liability.

The document cites the Supreme Court’s April ruling in Louisiana v. Callais, which limited race-based considerations in congressional map drawing, and the 2009 Ricci v. DeStefano decision involving New Haven firefighters.

Reactions and next steps Frank Ricci, lead plaintiff in the 2009 case, said the opinion supports merit-based hiring and rejects the use of statistical disparities to justify discrimination against individuals who succeeded on test results. Abhishek Kambli, a former Justice Department attorney, noted the EEOC had already reduced its disparate impact enforcement before the opinion.

Will Hild of Consumers’ Research said the document is intended to prompt an appellate or Supreme Court case that would declare the doctrine unconstitutional. The opinion is not binding like a court ruling but signals that employers are not required to follow disparate impact standards in their current form.